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DEBATE CLUB 11/14/05

What are the Limits of Presidential Power?

John C. Yoo and Neil J. Kinkopf debate.

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Critics of the Bush Administration have attacked the president for a host of unilateral actions he has taken. The president, critics say, took the country into two wars without congressional approval, detained suspected terrorists without trials or even charges, and pulled the United States out of longstanding agreements like the Kyoto Accords. In his new book The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11, Berkeley law professor John Yoo argues that the critics have the Constitution wrong. The Bush Administration's record, Yoo argues, is well in line with constitutional definitions of presidential powers and with much of American history.

How much power should a president have?

John C. Yoo is Professor of Law at Boalt Hall, University of California, Berkeley. Neil J. Kinkopf is Associate Professor of Law at Georgia State University College of Law.

Yoo: 11/14/05, 09:23 AM
Let's start with the power to begin war.

Many scholars have argued that the declare war clause is the root of Congress's control over war; they argue that military hostilities cannot begin without Congress's ex ante authorization (except in cases of attack on the United States itself). This view seems to me to be inconsistent with the text and structure of the Constitution. The Constitution, for example, sets out very precise procedures for making laws, and it clearly specifies when the assent of more than one branch of government is required to undertake a certain action, as in the appointment of Supreme Court justices or the making of treaties. There is no such procedure for deciding to go to war. Rather, the Constitution distributes various powers related to war, such as raising and funding the military, declaring war, and the power of commander-in-chief, between the president and Congress.

One could argue, however, that the framers expected the war power to work exactly as would the regular enactment of statutes. But what about Article I, Section 10? It says that "no state shall, without the consent of Congress . . . engage in war, unless actually invaded, or in such imminent Dangers as will not admit of delay." This provision creates exactly the war powers process, vis--vis the states, that critics of modern war demand should apply between Congress and the President. It even includes an exception for defending against sudden attacks that they have read into the Declare War Clause to make their theory workable. Why would the framers have abandoned such clear language to draft the war powers system that they allegedly wanted, and instead favored the ambiguous allocations that they in fact wrote?

Nor does the history of the Declare War Clause prove that its original purpose was to give Congress the power to begin wars. Supporters of a Congress ex ante system rely on the records of the Philadelphia Convention, when the delegates changed Congress' power from "make" to "declare" war, because they wanted to give the president the power to repel sudden attacks. But this view usually ignores the treatment of the war power during the ratification process itself, which was the more important event. Many critics of the Constitution claimed that it vested too much power in the executive over the military; not a single defender of the Constitution responded that the declare war clause would give Congress any power to prevent this. Rather, James Madison in the Virginia ratifying convention argued that it would be Congress's power of the purse that would control the executive sword. Madison drew upon British history, in which the crown's control over the use of military force had been checked by Parliament's funding power.

The argument that the Congress must pre-approve all hostilities is also inconsistent with the practice of the president and Congress for many years. The United States has often engaged in military hostilities without any declaration of war. In the first few years of the nation, for example, the United States went to one major war without a declaration (with France in 1798), and to another with a declaration (Great Britain in 1812). Since World War II, the practice has been to go to war without a declaration. None of the major wars in this period—Korea, Vietnam, Grenada, Panama, the Persian Gulf War, Kosovo, Afghanistan, and Iraq—have witnessed a declaration. In some of these cases, the Persian Gulf War, Afghanistan, and Iraq, Congress supported military action through an authorizing statute, although defenders of the Declare War Clause view have never explained why a statutory authorization is sufficient as a substitute for a declaration of war. In any event, Congress never even gave statutory authorization in the Korean and Kosovo wars.

Declarations of war do not serve a purpose in the balance of powers between the president and Congress in wartime. They can play a role, under international law, in defining the nation's legal status vis--vis an enemy, but this purpose has faded with the rise of wars of self-defense or those under international approval (where no declaration would be needed). War declarations do not play an important role in the domestic process of deciding on war.

But this does not mean that the President exercises unlimited power. Instead, Congress has at its disposal many other powers to balance presidential power in warmaking. Congress has complete control over the raising, funding, and size of the military. It can block a president's warmaking simply by refusing to allocate funds for a conflict. Congress can choose to block presidential warmaking ex ante, if it chooses, simply by doing nothing. If Congress had opposed the wars in Kosovo or even Iraq, it could simply have chosen not to provide any money. We should not confuse a constitutional defect for a failure of political will on the part of Congress to oppose presidential foreign policy.

Kinkopf: 11/14/05, 05:14 PM
John, you have written a concise and readable synopsis of your position on the power to initiate war. It seems an apt beginning for entries in a forum called "Debate Club." In fact, though, these views have an importance beyond their capacity to score debater's points. You are not just an influential thinker on questions of presidential power but, until recently, held an important office in the Justice Department from which you issued significant opinions on presidential power relating to foreign and military affairs. One of those opinions set forth the position taken in this Debate Club installment: that Congress's Declare War Clause power does not prohibit the President from initiating military hostilities.

Stated this way, I agree with your position. Consistent practice since the founding confirms the president's power to deploy military force abroad without prior authorization from Congress. For those who have tuned in expecting a disagreement, fear not. I do not agree with John's position that the president may start a war without first receiving an authorization from Congress. (It has long since been established despite occasional assertions to the contrary that the authorization need not be styled a declaration (See, e.g., Talbot v. Seeman). The traditional position of the executive branch had been that the president may order military operations abroad as long as those operations were not so extensive as to amount to war. Where military operations would amount to war, however, the Declare War Clause requires advance congressional approval.

The position you stake out here, which is evidently the current position of the executive branch, reverses the traditional understanding of the Declare War Clause. You regard that clause as obsolete and essentially irrelevant with respect to the allocation of power between the President and Congress. This "dead letter" reading of the Declare War Clause means that the president may commence and prosecute a war. The only apparent check against this presidential war power is the authority of Congress subsequently to deny funding to continue the war.

You support this reading with reference to constitutional text, structure, and history. As to text, you assert that the Constitution does not set out "precise procedures ... for deciding to go to war." But one might have thought the Constitution had done just that by expressly vesting in Congress power to declare war. Indeed, this power is granted in exactly the same section as all of Congress's other powers. Is the power to initiate war really any more procedurally imprecise than its power to regulate interstate commerce or to establish "an uniform rule of naturalization"?

This textual point is best put the other way around. If the Constitution contains precise procedural mechanisms for the initiation of governmental power, what clause other than the Declare War Clause is fit to serve the role? The Commander-in-Chief Clause does not textually signify any more than that the president is authorized to prosecute the wars that are validly initiated. It, at most, says nothing about how wars are to be validly initiated. Other clauses often cited as establishing presidential power, notably the Take Care Clause and the Executive Vesting Clause, serve to make clear that the president's role is not to initiate but to enforce the laws that Congress has instituted. It is deviations from this model that are expressly and precisely set forth in the Constitution's text (the power to nominate officers and to negotiate treaties, for example). The absence of constitutional text granting the president the power to initiate war seems the silence that actually speaks volumes.

With respect to structure considered more broadly, your reading is quite troubling. The Constitution generally means to structure power so as to accord each branch effective checks and balances against the ambitions of the others. If the Declare War Clause is a dead letter, then Congress has no effectual check against executive war making. This was a matter of the deepest concern to the founding generation. If the power to initiate and prosecute a war are united in the president, how is Congress to act as a check against presidential warmaking? Your answer, John, is that Congress can deny funding for the war. This is unrealistic on two counts. First, any attempt to deny funding to an effort that has already commenced is easily prey for demagoguery: "the sponsor of such legislation does not support the troops." Second, the president can protect himself against ex ante restrictions on his war-making discretion by using his veto power. Then, Congress may only prohibit war by acting in advance with constitutional supermajorities. This, of course, is no real check at all.

You are right to raise the importance of Congress exhibiting political will. The Constitution plainly contemplates that Congress will be the chief constraint on the initiation of war and all the horrors that war entails. But the founding generation realized the necessity of providing an effectual check against the inclination of presidents to seek fame and power through war. By reading the Declare War clause as a dead letter, you deprive the constitutional scheme of its primary device to check the potentially dangerous military ambitions of the president.

I say the primary mechanism because the Declare War Clause is by no means the only check on presidential power in this sphere. Congress has other significant powers relating to military affairs that should allow Congress to act as an effective check against the president. These include the power to "make rules for the government and regulation of the land and naval forces" and to "define and punish... offenses against the law of nations." Recent Justice Department opinions, notably the infamous torture memo, have (wrongly in my view) called into question whether in fact these powers can be used to limit the President's authority.

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Yoo: 11/16/05, 09:07 AM
As I read your argument, Neil, many of the wars waged by the United States were unconstitutional. Apparently the Korean War was unconstitutional, because Truman never received a declaration of war or some other statutory authorization from Congress. Wars in Grenada and Panama were unconstitutional. The war in Kosovo was unconstitutional. None of these conflicts received any type of congressional authorization, aside from funding. This is not to mention the various interventions waged by presidents in the past, such as President Wilson's interventions in Mexico or Russia. One significant problem with the argument that Congress must pre-approve all hostilities aside from responding to direct attacks on the United States is that it runs directly counter to the practices of many presidents and congresses. If the Constitution were being so seriously violated, and if the rights of the branches of government so out of balance, then we should expect Congress to exercise its powers and restrain presidents.

Instead, Congress has supported many of these wars through funding power. It may be true that, ex ante, presidents may criticize Congress for refusing to fund wars. But this confuses politics for constitutional law. Take the wars in Kosovo, Afghanistan, and Iraq. Presidents needed congressional support in the form of large sums of funding, ex ante, to carry out those wars—even Kosovo, where no ground troops were involved. Congress could have stopped these conflicts simply by refusing to act. This is not a question of the president's veto power serving as a block on Congress's powers, because the president cannot wage the war without an affirmative act of Congress in the form of new money. The president would not veto the very appropriation he needs to carry out the war.

So why do we have this state of affairs? It is because Congress does not want to be seen to approve or oppose wars. It seems to me that Congress would rather create large standing militaries with enormous offensive capabilities, and fund the president's use of force, but not have to go on the record with a declaration of war or authorization. War is unpredictable, risky, and could turn out badly; war could increase the intensity of opposition to a member of Congress. Members of Congress interested in re-election would rather let the president make the call on war, just as they often delegate difficult regulatory decisions to the administrative state. Those who want to read the Declare War Clause to oppose presidential flexibility in war want to use the Constitution to force Congress to decide things it does not want to decide, just as some want to use the non-delegation doctrine to force Congress to make regulatory decisions rather than delegating the decisions to agencies. Courts have consistently resisted the latter, and it is hard to see them getting involved in the former.

We also have not discussed whether a requirement of ex ante authorization of wars by Congress advances desirable substantive goals. The view that Congress must authorize all wars assumes that Congress's participation must improve the government's decision-making on war, or at the very least that Congress will be a check in favor of peace against a president inclined toward war. But is this true? While a rigorous empirical study would probably be too difficult to perform, at least by me, there does not seem to be an obvious correlation between congressional ex ante authorization and good war decisions. In American history, there have often been situations in which Congresses have been out in front of Presidents in seeking war; the Quasi-War with France and the War of 1812 are early examples, but the conflicts with Mexico and Spain were substantially supported in Congress, often earlier than presidents. If one believes that the Iraq war was a mistake, that war was authorized by Congress ex ante, just as Vietnam was authorized by Congress. Congressional participation may also prevent the United States from entering into wars that it should have—America's late entry into World War II was the result of isolationist congressional policies, which President Roosevelt attempted to evade through aggressive interpretation of his constitutional powers. I think most historians and political scientists would agree that global welfare and American national security would have benefited if the United States had entered World War II earlier.

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Kinkopf: 11/17/05, 08:49 AM
John, your attempt to imbue your position with historical pedigree ignores a crucial distinction. Not all military hostilities represent war in the constitutional sense. Thus, as I said in my previous post, the Declare War Clause is not directly implicated when the president initiates military hostilities if those hostilities do not rise to the level of a war. The traditional approach of the executive branch has been to ask whether a contemplated military deployment represents a war and, if so, whether the war has been duly authorized (which authorization need not be made in a law formally styled "declaration of war"). Thus, to take the Kosovo example, the Justice Department looked for and found valid congressional authorization for the aerial war. One might take issue with the legal reasoning that provided the predicate for Kosovo or other military ventures in our history. Indeed, it is entirely possible that some of these have been unconstitutional (Panama and Korea are leading contenders for the title), but practice simply does not support your claim that the president may initiate a war without first receiving authorization from Congress. It is only recently that the president has claimed such a power, and this claim is contrary to the traditional executive branch view exemplified in the Kosovo opinion.

The Constitution's drafters recognized that, in times of war, the president's power is increased dramatically. They also understood that presidents would thus be inclined to enhance their power and stature by engaging in military hostilities. The Constitution's plan looks to inter-branch deliberation as a primary check against ambitious abuse of governmental power, and as the most important check against abuse of those war powers entrusted to the president. That the structure requiring deliberation before action does not always lead to good judgments does not demonstrate either that deliberation offers no benefits or that eliminating advance deliberation will improve government decisionmaking.

Your approach will reduce the occasion for deliberation to ex post funding decisions, which would be a decision to shutdown the military. After the lessons of the 1995-1996 government shutdown, which did not even encompass the military, it is inconceivable that any politician would contemplate such a measure in the context of an ongoing war. This is not newly won wisdom. The framers were well aware of how difficult it would be to stop a war once it had begun. The authority to deny appropriations for a war once begun is, and always has been, an illusory check on presidential power.

On the subject of Congress's political will, it seems that the current Congress is stirring at long last. The Senate has passed, overwhelmingly, the McCain amendment—which would forbid abusive interrogation techniques by United States personnel—and the Warner amendment—which would require the administration to make monthly reports on the Iraq War. The most consequential inquiry, at the moment, is not over the power to initiate a war, but over the distribution of powers as that war proceeds. Armed with the power to "make rules for the government and regulation of the land and naval forces" and to "define and punish ... offences against the law of nations," Congress should be seen as well within its power to enact these provisions. But I am very curious, John, as to whether you agree.

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Yoo: 11/18/05, 02:36 PM
I would like to move on at some point to the other issue raised in the question for this debate, the question of the president's treaty power. But I cannot resist making a few comments in response on war powers.

I must confess that I am not convinced by the distinction between war and non-war. As I understand the idea, armed conflicts are defined by a spectrum of intensity. The most intense ones are what the framers would have called "war." The rest, I take it, are not "war" but something else. With regard to "war," Congress must authorize them because of the Declare War power. Everything short of "war," however, can be commenced according to a different system. That system looks a lot like my approach, I suppose, in which the president can undertake the initiative in starting a conflict.

What is the difference between war and non-war? Neil, you appear to believe that Kosovo was not a "war." Why not? In Kosovo, the United States attacked the territory, armed forces, and citizens of another sovereign nation. It did so not for any peacekeeping or law enforcement reasons, but achieve specific foreign policy objectives. The conflict went on for quite some time—longer in fact than the period allowed by the War Powers Resolution, and therefore longer than Panama and Grenada. The conflict did not involve ground troops, but why should that matter? And we were lucky to suffer no casualties, but why should that matter either? If the United States were to launch a successful strike against another nation's WMD facilities using nuclear weapons, that would not involve ground troops or U.S. casualties. It seems that trying to draw a distinction between war and non-war without any clear bright line test does not help—otherwise, why not just let the president and Congress determine for themselves whether something is war or not depending on whether they choose to issue a declaration.

The drafting and ratification process of the Constitution do not appear to mention any difference between war and non-war. One does not see mention in the Philadelphia Convention or the ratification debates of the idea that presidents could wage non-wars but needed congressional permission for "wars." If this distinction carried the significance attributed to it—the difference between a constitutional requirement of congressional ex ante authorization and unilateral presidential decision—I think we could have expected the framers to have mentioned it. In the early years of the Constitution, there is a Supreme Court case that discussion the difference between "imperfect" and "perfect" war, but the court assumes that Congress must decide whether either is in existence (and which goes, I think, more to my argument that the Declare War Clause is about the status under international law of the U.S.'s legal relationship with another country).

A second point. If this distinction between big wars and little wars is not rooted in the original understanding, then it must be justified on some functional basis. But what is that? Is it the case that this distinction advances specific goals that are not as well served by either the Ely/Koh approach or mine? And how does this distinction measure up in terms of whether it leads to good results? I guess that different outcomes between my approach and yours, Neil, would be that I think Korea and Panama are constitutional and you does not. Were they in fact "bad" wars? Should we adopt a constitutional process that would discourage the United States from entering into wars like Korea and Panama? Also, has requiring ex ante permission from Congress yielded good results? Vietnam was authorized by Congress, and if one believes that the Iraq war was a mistake, as many in this country believe, that too was authorized by Congress. If we are going to adopt a reading of the separation of powers for functional reasons, we ought to have some account of why the system that our political branches have used for many decades is defective, and why a non-war, war distinction would bring an actual improvement.

Kinkopf: 11/18/05, 05:13 PM
Can the president, on the basis of nothing more than advice issuing from the echo chamber that is his war cabinet, tomorrow announce that we have begun an invasion of Iran and that we will remain and occupy Iran until the establishment of a stable democratic republic? Evidently, you are suggesting that the president possesses this power. The history of the Constitution's drafting and ratification are replete with testimony to the awesome consequences of committing the nation to war. This history is also full of expressions of concern about vesting in one person, especially the president, the awesome power to commit the nation to war. Moreover, those who drafted and ratified the Constitution repeatedly expressed their commitment to the importance of deliberation and coordination in advance of government action as a means of checking against unwise and abusive exercise of government power. These expressions were not mere propaganda designed to secure the Constitution's ratification, these principles are written into document's text and structure.

In your book and in your posts here, you have invoked practice as demonstrating support for your theory of presidential war power. But practice actually demonstrates the contrary: presidents have not claimed the power you are asserting. Kosovo is relevant not because it was not a war, indeed my previous post refers to it as an aerial war. In its opinion on the validity of the Kosovo air war, the Justice Department's Office of Legal Counsel did not claim that the president may make war without congressional authorization. Instead, OLC found authorization in congressional enactments. Whether the Kosovo opinion was right or wrong on the merits is entirely beside the point. The point is that no president not named Bush has asserted the raw power your theory would create. It is in this regard that your skepticism about the utility of a distinction between the power to initiate war and a protective power to engage, under some circumstances, in hostilities short of war is also wide of the mark.

Your theory of presidential war power performs the neat trick of making the Declare War Clause disappear. The pressing question is whether it renders Congress's other substantive war powers irrelevant. In opinions issued while you were at the Office of Legal Counsel, congressional powers frequently evaporated upon invocation of the commander-in-chief power. Congress's power to make rules for the government and regulation of the military forces and to define and punish offenses against the law of nations, for example, were not even mentioned when OLC concluded that the commander-in-chief power trumps the statute forbidding United States personnel to engage in torture abroad. This approach to presidential power would seem to invalidate congressional efforts to regulate aspects of the present war as well—for example, the McCain Amendment regulating the treatment and interrogation of detainees. In the administration of President George H.W. Bush, OLC claimed that congressional attempts to micromanage the executive, such as by imposing reporting requirements, were unconstitutional. This would call into question the Warner amendment requiring frequent periodic progress reports on the Iraq War. It is this extravagant theory of presidential power that cannot be reconciled with the Constitution's text, structure, or history.

Yoo: 11/18/05, 08:28 PM
The Powers of War and Peace addresses the question of war initiation, and does not focus on the question of presidential-congressional relations in the conduct of war, but let me briefly answer your policy questions before turning to treaty termination.

First, the Graham amendment is certainly constitutional. It is purely up to Congress to define the habeas jurisdiction of the federal courts. If Congress wanted to expand habeas jurisdiction over all the globe, and wanted to grant it to enemy combatants, aliens as well as citizens, it could. It could also, I think, choose to limit that jurisdiction as well, to only citizens throughout the world and aliens found within the territory of the United States, which was the rule as it existed until last summer's intervention by the Supreme Court. It seems to me that claims that Graham's amendment amount to unconstitutional jurisdiction-stripping, are overblown. Graham's amendment would be correcting a mistake by the Supreme Court in overruling its earlier reading of the habeas statute in Johnson v. Eisentrager. But the larger point, I think, is consistent with my view of the branches using their constitutional powers to challenge each other, in that Congress can use the courts to attempt to challenge presidential war policies on detention of enemy combatants.

On the McCain amendment, it is certainly true that Congress has the power to regulate the discipline of the military, and that establishing codes of conduct for the military would include the treatment of enemy prisoners. On the other hand, the president as Commander-in-Chief has full control over tactical and strategic decisions in pursuing a war. While Congress's rules would govern the disciplining of soldiers, it is also the case that such rules could come into conflict, in discrete cases, with the president's power. And I think it is wrong to assume that any rule Congress passes must automatically prevail over the president's Commander-in-Chief power. Take, for example, nuclear weapons. Suppose Congress thought that the use of nuclear weapons was a violation of human rights, in fact one on a massive scale, because they do not discriminate between military targets and civilians—:as some justices on the International Court of Justice believe. Suppose Congress passed a law making it a crime for any soldier to use a nuclear weapon, even if ordered to do so by the president, because its use violates international human rights law. I think this would violate the president's Commander-in-Chief power, if a case arises in which the president in good-faith believes that he must use nuclear weapons to protect the security of the nation. I think a similar analysis would apply to the McCain amendment—it may be generally constitutional, but in a discrete case it might violate the Commander-in-Chief clause if the president believed that the use of coercive interrogation techniques were necessary to prevent, say, a ticking time bomb or another 9/11 style attack on an American city. Congress could always cut funds off for nuclear weapons, and it could order them destroyed, just as it could close Guantanamo Bay, eliminate military intelligence units, reduce the number of intelligence agency operatives trained in interrogation, and so on.

I think Kosovo could only be a constitutional war under my theory. If memory serves, Congress rejected a declaration of war and Congress rejected a statute authorizing hostilities. It only passed an appropriation for the war and a resolution expressing support for the troops. If the Justice Department read those and similar congressional actions as authorizing the Kosovo war, then it has relied on appropriations as approval for war, which is essentially the same outcome as my approach. It is difficult to see how you could conclude that the Kosovo war was legal but Korea not—if anything, there were much more signs of congressional support for Korea, including a draft, appropriations that went on for more than just a few months, and a massive buildup of the military. I suppose one could just say that they believe Korea and Kosovo and a lot in between are unconstitutional, but then you are reaching a conclusion that seems to have been rejected by many presidents and many members of Congress, has never been adopted by the courts, and does not appear likely to be ever followed in the future by the branches of government.

Legal Affairs also raised the question of treaty termination. My theory is that presidents can terminate treaties unilaterally, and so it was constitutional for president Bush to terminate the ABM Treaty and pull the United States out of the Kyoto accords and the agreement establishing the International Criminal Court. I think this reading comes out of the constitutional text and structure. The Treaty Clause states that the president "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The structure of the clause makes clear it is the president who initiates the treaty negotiations and who finally makes the treaty—he could even choose not to enter the United States into an international agreement even after the Senate has given its advice and consent. The Senate cannot force the President into a treaty he does not want; in other words, the president has an absolute veto over treaties.

But the Constitution does not directly address who has the power to terminate treaties; it only address how they are made. I think the Treaty Clause ought to be read the same way we have read the president's power over lower executive branch officers. The Constitution (directly adjacent to the treaty clause) specifies that the president nominates, and after the advice and consent of the Senate, appoints federal officers. Like the Treaty Clause, the Appointments Clause does not specify how these decisions are reversed—how a treaty is terminated or an officer removed. I think the Constitution has long been understood, from the first Congress on, to give the president the power to remove and fire executive branch officers, under the theory that this power rests within the general vesting of the executive power of the United States in the president. The requirement of Senate advice and consent is a limited exception to the president's general power over appointments, encompassing both the power to appoint and remove.

It would seem to me that the same theory would apply to treaties. The treaty power was originally an executive power under the British Constitution. The fact that it was possessed by the Articles of Confederation Congress did not change that fact -- the better historical view is that the Congress was essentially an executive body. The Senate's advice and consent role is a limited exception to the treaty power's vesting in the presidency, and so the power to terminate would vest in the president just as the removal authority over federal officials vests in the president. During the ratification, John Jay mentioned in a Federalist Paper that he thought the Senate's consent might also be required for treaty termination, but I think it is fair to say that the issue did not arise in any significant way during the approval of the Constitution.

I think that this view has been accepted on historical grounds. During the cabinet debate under President Washington over whether to honor the alliance treaty with France at the outset of the Napoleonic Wars—which Washington solved by issuing the Neutrality Proclamation—no one seemed to believe that Congress's approval was necessary should Washington have decided to terminate the treaties with France. Presidents have terminated treaties on a regular basis, and the Supreme Court refused to review a constitutional challenge brought by Senator Goldwater against President Carter's termination of our mutual defense treaty with Taiwan. Some have argued that the Senate must approve treaty termination because treaties are part of the laws of the land under the Supremacy Clause, but this view has never held much sway over practice—I believe the latest figures show that about half of all treaty terminations have been achieved by sole executive action. It is also difficult to see why the Supremacy Clause—which is about the pre-emption of state law by superior federal law—should be read as dictating the separation of powers over treaties (or over statutes for that matter).

Let me add that my approach still recognizes that checks and balances exist over international agreements, but not through the formal processes so favored by critics of presidential foreign affairs powers. Take the ABM Treaty, for example. Suppose Congress opposed the termination of the ABM Treaty. It could still force the United States to live up to the terms of the agreement, regardless of President Bush's position, simply by refusing to fund research and development of the National Missile Defense. It could force the United States to live up to the Kyoto accords simply by passing legislation adopting nationwide energy restrictions that would comply with the Kyoto targets.

Congress could also effectively terminate treaties against presidential wishes by forcing it to adopt policies—such as funding a national missile defense—that would violate existing treaties. Presidents, I suppose, could also keep treaties in existence which might appear to have lapsed. I think President Clinton did this with the ABM Treaty, which arguably terminated with the disappearance of the Soviet Union. President Clinton chose to keep the ABM Treaty in force with the Soviet Union's successor nations, even though there was no provision for this in the treaty itself. But then this is just another example of how foreign affairs is actually shaped through politics and the interaction of constitutional powers, rather than through strict, formalistic processes allegedly imposed by the Constitution.

Kinkopf: 11/18/05, 11:50 PM
On your theory, the only check on the president's power is his own underdeveloped sense of self-restraint. The president need only incant the phrase "national security" and all legal constraints fall. You appear to allow Congress only gross, impractical powers. Congress may refuse to provide nuclear weapons, but once they exist Congress cannot constrain the ways in which they are used. You say that Congress may enact a law requiring that our nuclear weapons be destroyed, but it is not at all clear that the president would be bound to obey this law—as long as the president is willing to declare a national security need for retaining them. One need only peruse the litany of discredited claims made in support of the Iraq War to see the value of this check.

More importantly, this approach to interpreting power profoundly misreads the Constitution. The Constitution expressly allows Congress to adopt all measures that Congress deems necessary and proper to effectuating its enumerated powers: including its powers to establish, regulate, and arm the military. It is not left to the gross decision of whether there will or will not be a military. Congress may determine that there will be a military, but it will only be available for certain purposes (hence the Posse Comitatus Act, prohibiting the use of the military for law enforcement purposes). Your theory would mean that Congress must accept that the president may do whatever he wishes with the military and, if Congress does not like it, their only choice is to abolish or de-fund the military. This all-or-nothing interpretation dramatically reduces Congress's power and enhances the president's.

The Constitution's structure and history show how wrong this theory is. No one branch is entrusted to establish the nation's laws and character. These come from the process of interbranch conflict, deliberation, and compromise. Once set, no single branch may alter them. If the nation has decided through the constitutionally ordained processes that we will not use nuclear weapons, or chemical weapons, or landmines, or torture, the Constitution does not empower the president acting alone to alter that determination. If the president orders the use of torture, he is a criminal. As long as we claim adherence to the rule of law, no invocation of "national security" or any other hocus pocus will exonerate him.

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